Majority
p. 411The People vs. John Mount, John Vanoster, Aaron Brown, John Wheeler, John Haney, and Francis Meeks.
Headnote
Maxwell, District Attorney, and Wilkins, for the People. D. Graham, and Phcenix for the Defendant.The defendants were charged, in an [indictment in the usual form, with committing a riot on the 10th day of April, 1823.
ty^f^defend ant, on his-p^n/at the bar ^ of ^the criminal pro- ^ and no trial °yíhout íuch presence, but-b^if does not appear at the bar of the Court, they-will direct the him^to^dentif7 his Pe.r' son, or will forfeit his recogniz anee, and so bring* j1™ before?-
Riot.
The facts appeared to be, that they were young boys from fourteen to fifteen years of age, and were apprentices, living near the'corner of Broad and Garden-Streets, It also appeared they were in the habit of frequenting the house of Thomas M’Cready, the prosecutor, almost every evening, in company with other apprentices and boys, and insulting him by saucy and impertinent language; calling him an old tory, and threatening him with force and yi°* lence ; bursting open his door, &c. On one occasion at least, Mount, Wheeler, Brown, and Weeks, broke open the door and came into his store, and threatened violence to . his person.
It appeared they had feigned names, and it was with the utmost difficulty that the prosecutor .could .find out their names, whereby they could be arrested."
After proving these facts, Maxwell, District Attorney, was proceeding to identify the defendants, by directing the crier to call them up to the bar, and interrogating the prosecutor to their respective names, when D. Graham and Phcenix objected. They observed, that their defence would rest principally upon the identity of the defendants, and that they thought it an unfair manner to designate their persons by calling them up by name, and then asking
p. 412
the prosecutor the name of the person so called, alleging that it gave the prosecutor an opportunity to know before the question was put to him. They suggested that the legal method was, for the prosecutor to select them out of • the people attending the Court, and not have them called and be thus designated by the crier.
The Court replied that it was the duty of the defendants to be present and at the bar of the Court; and in all criminal proceeding were always supposed to be; and no trial could take place without such presence, but by consent. If, therefore, the counsel for the defendants objected to calling them to the bar, for the purpose of proving them the same persons concerned in the riot the Court would be obliged to forfeit their recognizance, and so bring them up, and were proceeding to do it, when the counsel for the defendants consented they might be called from among the audience, and identified.
They were called by the crier, and the identity of Mount, Wheeler, Brown, and Weeks, fully made 'out.